Tempest v. State

141 A.3d 677, 2016 R.I. LEXIS 104, 2016 WL 3755461

• Court: Supreme Court of Rhode Island
• Decided: July 14, 2016
• Docket: No. 2015-257-M.P.
• Status: Published

Opinions

OPINION

Justice INDEGLIA,

for the Court.

On July 13, 2015, the Providence County Superior Court vacated the conviction of Raymond “Beaver” Tempest Jr. (Tempest) for the 1982 homicide of Doreen Picard (Picard). On September 22, 2015, this Court granted the state’s petition for a writ of certiorari. Before us, the state argues that the Superior Court erred in vacating Tempest’s conviction on the basis of two Brady¹ violations founded on the state’s suppression of favorable evidence and a due process violation based on improper witness coaching by the Woonsock-et Police Department. After careful review of the record and of the parties’ written submissions and oral arguments, we affirm the judgment of the Superior Court and quash the writ of certiorari heretofore issued.

I

Facts and Travel

The facts of this case are altogether tragic, and the travel is anything but lackluster. We recite only those facts that are relevant to the instant appeal, and so invite the reader to consult our opinion in State v. Tempest, 651 A.2d 1198 (R.I.1995) for a more detailed discussion.

On February 19, 1982, at approximately 3:20 p.m., fifteen-year-old Lisa LaDue (La-Due)² came home to the triple-decker apartment at 409 Providence Street in Woonsocket, Rhode Island, which she lived in with her mother and step-father, Douglas Heath (Heath). LaDue testified that, upon arriving home, she walked around to the back of the house, where she noticed a “big maroon car” parked adjacent to the bulkhead leading into the cellar. When she entered through the back door of the house, she saw three-year-old Nicole La-ferte (Nicole) crying, “saying her mother was downstairs sick.” LaDue disregarded Nicole’s behavior as simply a cry for attention because LaDue heard “some moving around downstairs[,]” so she went upstairs to wait for Heath to come home. Within a few minutes, she saw Heath pull into the driveway. Shortly thereafter, she heard Heath frantically call for her.

Heath testified that he arrived home approximately ten minutes after LaDue. When he walked into the back hallway on the first floor of the multifamily home, he also encountered young Nicole, who was standing at the cellar door crying. Heath asked Nicole what was wrong, and Nicole replied that her mother was downstairs “lying down.” Heath went down to the cellar, unprepared for the gruesome scene he was about to encounter — a body “basically sitting” between the washer and dryer, and a second body lying face down in a “puddle of blood.” Both bodies had been beaten beyond recognition. The bodies would later be identified as those of Pieard and Nicole’s mother, Susan Laferte (Laferte). Picard was pronounced dead at approximately 4:30 p.m. the same day. Laferte miraculously survived the brutal attack; but, due to the injuries she sustained, her memory was significantly impaired.

Following what even the state described as a “chao[tic],” “disorderly],” and “disastrous]” nine-year investigation by the Woonsocket Police Department, on June 5, 1991, a grand jury indicted Tempest for Picard’s murder.³ The case went to trial in April 1992, during which Heath, LaDue, and a number of other witnesses testified. Of these witnesses, four testified that Tempest had confessed to killing Picard,

Two such witnesses were John Guarino (Guarino) and his former girlfriend, Donna Carrier (Carrier).⁴ Tempest and Guarino ran in the same circle of friends, and at one time they lived in the same apartment complex on Winter Street in Woonsocket. Guarino testified that, while they were out one night having drinks in late 1982 or early 1983, Tempest confessed to killing Picard. • Although Guarino testified that at the time he did not take Tempest’s confession “seriously,” he nevertheless went home and told Carrier what Tempest had said. Guarino further testified that, several weeks later, Tempest — who Guarino said appeared “very, very nervous” — came to his apartment and told him he “better keep [his] mouth shut and not say anything to anybody.” Tempest again told Guarino “that he did it” but that “they don’t have any proof that he did it.”

Carrier testified that she overheard this exchange between Guarino and Tempest. She stated that Tempest said that Picard “came down the stairs at the wrong time, saw him hitting [Laferte]” and that “[h]e couldn’t let her get away and had to do her, too.” Carrier also testified that Tempest said he was “very upset because [La-ferte] was going to tell [his wife] something and that he and [his wife] had just gotten back together.” Prior to trial, Carrier had been adamant that, at the time of the murder, the Tempest family lived in the same apartment complex on Winter Street as she and Guarino.

Two other witnesses testified that Tempest had confessed to killing Picard. The first was Ronald Vaz (Vaz), an acquaintance of Tempest, who had a long criminal record and who occasionally “snorted” cocaine with him.⁵ Loretta Rivard, a prostitute with whom Tempest “partfied]” one night in January 1988, also testified that Tempest took responsibility for the murder. To be sure, many of the state’s witnesses were not model citizens. Indeed, the trial justice said the following about them:

“We didn’t have a parade of MDs or [s]umma [e]um [ljaudes here. We had people who deal in drugs, we have people who snort drugs and matters of-that nature. * * * So we don’t expect total intelligence here.” Tempest, 651 A.2d at 1218.

Yet, the trial justice also noted that 'the court “must take the witnesses as they come.” Id.

On April 22, 1992, a jury found Tempest guilty of murder in the second degree, and he was subsequently sentenced to eighty-five years in prison.⁶ This Court affirmed his conviction on January 11, 1995. Tempest, 651 A.2d at 1220.

Nearly a decade later, on April 8, 2004, Tempest filed an application for postcon-viction relief pursuant to Rhode Island’s Innocence Protection Act, G.L.1956 §§ 10-9.1-11 and 10-9.1-12⁷ and sought the release of certain physical evidence (including, among other items, hair recovered from both victims of the attack, as well as' fingernail clippings from Picard) for forensic testing. Over the next eleven years, many motions and memoranda were filed, various orders were entered, and discovery ensued. Finally, in April 2015, Tempest illed a -second amended application ■ for postconviction relief, which is the operative application in the present appeal.

Following a lengthy hearing spanning the course of several weeks, the hearing justice issued a seventy-eight-page decision,- in which he granted Tempest’s application for postconviction relief and vacated his conviction. The hearing justice identified three grounds upon which Tempest was entitled to postconviction relief: two Brady violations based on the state’s suppression of favorable evidence and a due process violation resulting from the Woon-socket Police Department’s “unduly suggestive interviewing of witnesses[.]”⁸ The state then petitioned this Court for a writ of certiorari, which was granted on September 22, 2015.⁹

II

Standard of Review

“[P]ost[ ]conviction relief is available to a defendant, convicted of a crime who contends that his original conviction * * * violated rights that the state or federal constitutions secured to him.” Torres v. State, 19 A.3d 71, 77 (R.I.2011) (quoting Otero v. State, 996 A.2d 667, 670 (R.I.2010)). “An applicant who files an application for postconviction relief -bears the burden of proving, by a preponderance of the evidence, that such relief is warranted.” Rivera v. State, 58 A.3d 171, 179 (R.I.2018) (quoting Anderson v. State, 45 A.3d 594, 601 (R.I.2012)).

“In reviewing an application for postconviction relief, *[t]his Court will not impinge upon the fact-finding function of a hearing justice ⅜ * * absent clear error or a showing that the [hearing] justice overlooked or misconceived material evidence in arriving at those findings.’” State v. Thornton, 68 A.3d 533, 539 (R.I.2018) (quoting Anderson, 45 A.3d at 601). However, “[w]e employ a de novo standard of review with regard to ‘questions of fact or mixed questions of law and fapt pertaining to an alleged violation of an applicant’s constitutional rights * * *.’ ” Id. (quoting Anderson, 45 A.3d at 601). Nevertheless, even when conducting such a de novo review, “we still accord a hearing justice’s findings of historical fact, and inferences drawn from those facts, great deference * * Id. at 540 (quoting Anderson, 45 A.3d at 601).

Ill

Analysis

On appeal, the state attacks each of the three grounds the Superior Court relied on in vacating Tempest’s conviction. First, the state contends that the hearing justice erred in granting relief on Tempest’s “maroon car” Brady claim because his claim was barred by laches and the evidence was not material. Next, the state argues that the hearing justice erred in vacating Tern-pest’s conviction on the basis of the former prosecutor’s failure to disclose pretrial statements made by Carrier. Last, the state asserts that the hearing justice erred in determining that Tempest’s due process rights were violated as a result of improper police practices. Because we can affirm the Superior Court’s decision on any or all of these grounds, we start with the state’s second claim of error, which we conclude is dispositive of the state’s appeal.

A. Carrier’s Pretrial Statements¹⁰

Seventeen days before trial, Carrier provided the state’s former prosecutor with two novel statements: (1) that Tempest’s brother, Gordon Tempest (Gordon) — who was a detective with the Woon-socket Police Department at the time of the murder — hid the murder weapon (a pipe) in a closet on the first floor at 409 Providence Street in an effort to conceal it so as to protect his brother; and (2) that, on the day of the murder, Tempest’s children were “excited” about getting a puppy.¹¹ In response to receiving these statements from Carrier, the former prosecutor wrote in his notes: “more new info re: [Gordon Tempest] putting pipe in closet + dog for the kids — too late — don’t volunteer new info — will cause big problems.” Tempest argues that the former prosecutor deliberately failed to disclose this favorable evidence, and that such a deliberate nondisclosure automatically entitles him to a new trial.

“In accordance with Brady, if a prosecutor has suppressed evidence that would be favorable to the accused and the evidence is material to guilt or punishment, the defendant’s due-process rights have been violated and a new trial must be granted.” DeCiantis v. State, 24 A.3d 557, 570 (R.I.2011) (quoting State v. McManus, 941 A.2d 222, 229-30 (R.I.2008)). With respect to such a failure to disclose, our jurisprudence “provides even greater protection to criminal defendants than the one articulated [by the United States Supreme Court].” State v. Chalk, 816 A.2d 413, 419 (R.I.2002) (quoting Cronan ex rel. State v. Cronan, 774 A.2d 866, 880 (R.I.2001)). “When the failure to disclose is deliberate, this [CJourt will not concern itself with the degree of harm caused to the defendant by the prosecution’s misconduct; we shall simply grant the defendant a new trial.” State v. Wyche, 518 A.2d 907, 910 (R.I.1986). Thus, instances of deliberate nondisclosure are “[t]he easy cases[.]” Lerner v. Moran, 542 A.2d 1089, 1092 (R.I.1988) (quoting United States v. Keogh, 391 F.2d 138, 146 (2d Cir.1968) (Friendly, J.)). We have said that “[t]he prosecution acts deliberately when it makes ‘a considered decision to suppress * * * for the purpose of obstructing¹ or where it fails ‘to disclose evidence whose high value to the defense could not have escaped * * * [its] attention.’ ” Wyche, 518 A.2d at 910 (quoting Keogh, 391 F.2d at 146-47).

To begin, we are not troubled by the terseness with which the hearing justice determined that the former prosecutor acted deliberately when he failed to disclose Carrier’s pretrial statements. In our opinion, he covered all of the necessary bases in his analysis. First, he appropriately articulated our jurisprudence surrounding this issue. He even noted the former prosecutor’s purported reason for not offering the information to the defense: because he felt “it would lead to a continuance and to headaches.” The hearing justice then cited caselaw to support his contention that “[constitutional rights cannot be tossed aside whenever they present the smallest inconvenience[,]” and concluded that the former prosecutor’s “‘considered decision to suppress’ [the statements] automatically necessitates relief.” (Quoting DeCiantis, 24 A.3d at 570.) Furthermore, the former prosecutor’s own words — “don’t volunteer” — indicate a considered decision not to offer the new information to the defense.¹² While the hearing justice’s analysis of this particular issue was admittedly brief — it spanned only two-and-one-half pages of a seventy-eight-page opinion — the length of the analysis is not a factor when determining the merits of his ruling. The hearing justice succinctly analyzed the issue, and we discern no clear error in his finding that the former prosecutor deliberately suppressed Carrier’s new statements. See Thornton, 68 A.3d at 539.

Moreover, it is our opinion that the “high value” of Carrier’s new statements to the defense could not have escaped the former prosecutor’s attention; thus, for this reason as well, his failure to disclose the statements constitutes a deliberate nondisclosure. See Wyche, 518 A.2d at 910 (“The prosecution acts deliberately when it makes ‘a considered decision to suppress * * * for the purpose of obstructing¹ or where it fails ‘to disclose evidence whose high value to the defense could not have escaped * * * [its] attention.’” (emphasis added) quoting Keogh, 391 F.2d at 146-47). Specifically, when Carrier made the statements in question, the former prosecutor was at least aware that there was an issue (albeit perhaps unresolved) with regard to Carrier’s assertion that Tempest lived in the same apartment complex as she and Guarino at the time of the murder. Three months prior to receiving the statements at issue, in December 1991, Pamela Mi-clette (Miclette), the Tempests’ babysitter, indicated that the Tempest family was living on Phoebe Street at the time of the murder, not on Winter Street where Carrier and Guarino lived.¹³ At some point just before trial, the former prosecutor definitively found out that Carrier was in fact mistaken as to where Tempest lived at the time of the murder. Having realized that it was of high value to the defense because it seriously discredited much, if not all, of Carrier’s testimony about seeing Tempest on the day of the murder, the former prosecutor disclosed Carrier’s mistake to the defense. However, in doing so, he failed to also disclose Carrier’s new statements recorded in his March 10,1992- note about Gordon and about the children being excited over the puppy on the morning of the murder.

The state argues that Carrier’s statement with regard to Gordon concealing the murder weapon was not new, but rather was cumulative of other statements Carrier made that had already been disclosed to the defense. This argument is not persuasive. At the outset, we note that the former prosecutor twice identified Carrier’s statements as “new.” The hearing justice also found that the statements were new, and we do not think he clearly erred in so determining. See Thornton, 68 A.3d at 539. Indeed, our own review of the evolution of Carrier’s statements leads us to this same conclusion.

From her initial statement to police in February 1987 through her testimony at trial, Carrier maintained that Tempest had said that Gordon was unaware of his involvement in Picard’s murder. Carrier first spoke to the police in February 1987, at which time she said that Tempest told her that Gordon knew nothing about his involvement in the murder and that, if Gordon did find out, he would turn Tempest in. She confirmed her statement during the grand jury hearing on November 30, 1990. While Carrier did indicate that Tempest told her that “everything ha[d] been taken care of[,]” she went on to say that Tempest told her that “my father is an important man” and that “it cost a lot of money for my father to make sure my name didn’t get brought up in this.” She also again confirmed that Tempest told her: “If my brother Gord[on] knew, he would turn me in.”

Similarly, at Tempest’s bail hearing in June 1991, in response to the former prosecutor’s question as to whether Tempest had ever said anything about “whether he expected to be prosecuted” for Picard’s murder, Carrier replied:

“[Tempest] said he didn’t think anything would come of it because his father was the High Sherriff [sic] of Providence and his brother was the Detective on the Woonsocket Police Force. He said if he told his brother Gord[on], Gord[on] would go to the police and tell them what they knew, and that the murder weapon was not there, it wasn’t available, and that all fingerprints were taken care of.” (Emphasis added.)

Thus, Carrier still maintained that Tempest had told her that Gordon was not aware of his involvement in Picard’s murder.

Carrier’s witness statement, on August 26, 1991, was a bit more vague, but it still did not specifically indicate that Gordon knew about Tempest’s involvement in the - murder or that he participated in a coverup. She stated that “[Tempest] said, T won’t get caught, my father and brother won’t let me get caught. The weapon’s been all taken care of, he said.’ ” At trial, Carrier continued to maintain that Tempest said that “his brother didn’t know [about his involvement in Picard’s murder], but his father did” and that “[h]is father had paid off a large sum of money to make sure that [Tempest’s] name was never nlentioned * * She then testified that Tempest told her that “[t]he murder weapon would never be found [and that] it had been wiped clean of fingerprints an'd gotten rid óf.”

Now turning to the statement in question, it is clear that Carrier, dramatically changed her story both as it pertained to her understanding of Gordon’s knowledge of Tempest’s involvement in Picard’s murder as well as any involvement Gordon may have had in concealing the murder weapon. At Tempest’s postconviction-re-lief hearing, the former prosecutor testified that Carrier told him in March 1992— mere days before trial — that “Gordon Tempest had put the pipe in the closet” at 409 Providence Street, where it was ultimately found by police,- We deem this a significant modification from Carrier’s previous statements and trial testimony, in which she stated not only that Tempest told her that Gordon was unaware of his involvement in Picard’s murder, but which also seemed to indicate that it was Tempest’s father who helped him cover up his involvement in the crime.

The state pushes back and argues that Carrier’s statement regarding Gordon’s knowledge and involvement was not exculpatory, but rather was inculpato-ry, inasmuch as it lent itself to the theory that Tempest committed the murder and Gordon helped him cover it up. While the substance of Carrier’s statement regarding Gordon hiding the pipe may have been inculpatory, the statement nonetheless could have been used to impeach her credibility. The United States Supreme Court has unequivocally stated that “[i]mpeach-meht evidence * ■ * *- as well as exculpatory evidence, falls within the Brady rule,” United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and that facially inculpatory evidence can be used to impeach a witness. See Strickler v. Greene, 527 U.S. 263, 282 n. 21, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (“We reject [the] respondent's contention that these documents do not fall under Brady because they were ‘inculpatory.’ Our cases make clear that Brady’s disclosure requirements- extend to materials that, whatever their other characteristics, may •be used to impeach a witness.”). “Such evidence is ‘evidence favorable to an accused,’ * ,⅜ * so that, if disclosed and used effectively, it may- make the difference between conviction and acquittal.” Bagley, 473 U.S. at 676, 105 S.Ct. 3375.- Here, Carrier’s new statement about Gordon’s involvement in a cover-up, though perhaps inculpatory on its face, certainly could have been used by the defense to undermine her already shaky credibility. ■

Carrier’s statement with regard to Tempest’s children being excited about getting a puppy was also novel, and the state does little to belie this assertion. In her grand jury testimony, Carrier did mention that Tempest was “supposed to pick up a pitbull puppy from * * ⅞ either Doreen Picard or Sue Laferte” on the day of the murder. Yet, Carrier had never before offered that, on the morning of Picard’s murder, Tempest’s children were excited about getting a puppy.

Her statement that Tempest’s children were excited about the prospect of getting a puppy on the morning of Picard’s murder also clearly had impeachment value. It had already been established that Carrier’s recollection was mistaken as to when Tempest and his family moved into the apartment complex where she and Guarino lived — the Tempests did not move into their apartment complex on Winter Street until 1983, the year after the murder— meaning that it was unlikely, if not altogether impossible, that Carrier could have seen Tempest’s children on Winter Street on the morning of the murder. Yet, mere days before trial, Carrier still continued to assert that she saw Tempest and his family on that day. Moreover, it was undisputed that John Allard, a friend of Tempest, was to be the recipient of the puppy in question.¹⁴

Given that the evidence in the state’s case was nearly entirely circumstantial, “[t]he outcome * * * hinged on whom the jury believed[.]” State v. Haslam, 663 A.2d 902, 909 (R.I.1995). Thus, had Carrier’s newly offered, inconsistent, and factually very dubious statements been disclosed to the defense, and had they been used effectively to further undermine Carrier’s already questionable credibility, they “may [have made] the difference between conviction and acquittal.” Bagley, 473 U.S. at 676, 105 S.Ct. 3375.

Last, the state argues that the statements were not material. However, the materiality of the evidence is not germane when the prosecution’s failure to disclose the evidence is deemed to be deliberate. McManus, 941 A.2d at 230. Yet, even if a showing of materiality were required, Tempest could satisfy this burden. See DeCiantis, 24 A.3d at 571 (“[T]he applicant ‘bears the burden of establishing * * * that the nondisclosed evidence was material * * *.’ ” quoting Chalk, 816 A.2d at 419).

“Under the Bagley standard of materiality, ‘[t]he evidence is material only if there is a reasonable probability that, had the evidence been- disclosed to the defense, the result of the proceeding would have been different.’ ” Lerner, 542 A.2d at 1091 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375). To be clear, Tempest “need not show that he ‘more likely than not’ would have been acquitted had the new evidence been admitted.” Wearry v. Cain, — U.S. -, 136 S.Ct. 1002, 1006, 194 L.Ed.2d 78 (2016) (quoting Smith v. Cain, — U.S. -, 132 S.Ct. 627, 630, 181 L.Ed.2d 571 (2012)). Rather, “[a] ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Lerner, 542 A.2d at 1091 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375).

As we have already pointed out, the suppressed statements could have been used to impeach Carrier’s testimony even further. Carrier was one of four less-than-stellar witnesses (and arguably the most credible of the four) who testified that Tempest confessed to the murder. Had her testimony been further undermined, and her credibility perhaps crushed altogether, certainly there is, at the very least, a reasonable probability — one “sufficient to undermine confidence in the outcome” — that the verdict against Tempest would have been different. See Wearry, 136 S.Ct. at 1006 (holding that “[bjeyond doubt, the newly revealed evidence suffices to undermine confidence in [the] conviction” when a witness’s credibility, “already impugned by his many inconsistent stories, would have been further diminished” by the revelation). Contrary to what the dissent suggests, whether the defense would have actually used the statements is not relevant to our analysis — the bottom line is that it should have been defense counsel’s choice to make.

B. The State’s Remaining Claims

Because we find the former prosecutor’s deliberate failure to disclose Carrier’s pretrial statements to be dispositive of the state’s appeal, it is the only issue that warrants addressing in our opinion.¹⁵ See Grady v. Narragansett Electric Co., 962 A.2d 34, 42 n. 4 (R.I.2009) (reiterating our “usual policy of not opining with respect to issues about which we need not opine”).

IV

Conclusion

In coming to our decision today, we are cognizant of the fact that, thirty-four years ago, two young women were brutally beaten, and we remain mindful of the impact that this ordeal has had on the victims and their families. Yet, our justice system requires that the state bear the burden of proving every element of a crime beyond a reasonable doubt, see, e.g., State v. O’Brien, 774 A.2d 89, 100 (R.I.2001), and it must do so within the confines of the law. When the state exceeds those confines, it must suffer the consequences.

Tempest has met his burden of proving by a preponderance of the evidence that postconviction relief is warranted. See Rivera, 58 A.3d at 179. Accordingly, we affirm the Superior Court’s judgment vacating Tempest’s conviction and quash the writ of certiorari heretofore issued. The materials associated with this case may be remanded to the Superior Court.

1 . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

2 . LaDue’s maiden name is Wells.

3 . No charges were ever filed against Tempest in connection with the attack on Laferte. The statute of limitations has long since run with regard to this assault.

4 . Carrier’s maiden name was Bousquet. By the time of Tempest’s trial, Guarino and Cartier had separated and were no longer in contact with one another. Both have since passed away.

5 .Carrier also testified that Vaz sold her and Guarino cocaine.

6 . Tempest filed a motion for a new trial, which the trial justice denied.

7 . The Innocence Protection Act was enacted in 2002. General Laws 1956 § 10-9.1-11 governs the mandatory preservation of biological evidence, while § 10-9.1-12 governs the DNA testing of evidence.

8 . Tempest’s application also included claims for relief based on newly discovered evidence, the state’s failure to disclose statements made by Vaz to police pertáiniñg to unrelated ' crimes, the former prosecutor’s presentation of allegedly peijured testimony, the state’s failure to disclose exculpatory evidence pertaining to the ownership of Vaz’s farm at the time of the murder, ineffective assistance of counsel, and actual innocence. The hearing justice did not find any merit to these claims, and Tempest did not file a cross-petition for writ of certiorari asking this Court to review those findings.

9 .In 2015, the General Assembly amended § 10-9.1-9, as amended by P.L. 2015, ch. 92, § ’1, such that an aggrieved party may seek review of ari order denying postconviction relief "by filing a petition for writ of certiorari in accordance with the [Sjupreme [Cjourt [Rjules of [Ájppellate [Procedure within sixty (60) days of the entry of the final judgment.”

10 . The Superior Court analyzed the state’s laches defense as a complete bar to Tempest’s postconviction relief action and ultimately rejected its argument. Before this Court, the state only argues laches as it applies to Tempest’s "maroon car” Brady claim; because we do not reach the "maroon car” jssue, we need not address laches as it applies to that particular claim.

11 . Although seemingly benign, the latter statement is relevant because Tempest and Laferte had agreed to mate their dogs and Tempest was to receive the pick of the litter.

12 . The dissent accuses the majority of making improper factual determinations, especially as it pertains to the meaning and intent of the former prosecutor’s words “more new info re: [Gordon Tempest] putting pipe in closet + dog for the kids — too late — don’t volunteer new info — will cause big problems.” In doing so, the dissent makes its own factual determination that the former prosecutor was only referring to the fact that the new statements could be cause for a continuance, which was nothing more than the former prosecutor’s effort to avoid his prosecutorial dilemma. Furthermore, in finding that the former prosecutor deliberately failed to disclose the information, the hearing justice clearly rejected the former prosecutor’s proffered reason for failing to disclose the information. Such a factual finding is entitled to deference from this Court on appeal. See State v. Thornton, 68 A.3d 533, 539-40 (R.I.2013).

13 , There is no dispute as to whether Mi-clette’s statement was timely and appropriately disclosed to the defense.

14 . Notably, in his testimony at Tempest’s postconviction-relief hearing, in response to petitioner’s question asking whether he knew that the statements could be used to "cross[examine] Carrier!,]” the former prosecutor admitted: “If you look at it that way, it was inculpatory — exculpatory.”

15 . The dissent and concurrence admonish the majority for not taking the opportunity to provide "guidance” to the Superior Court regarding Tempest’s due process claim. However, doing so would be fruitless. First, if we were to decide Tempest’s due process claim on the basis of res judicata, such a determination would only be applicable to this particular postconviction relief action, and thus would have no effect on retrial. Further, were we to opine on the merits of the claim, our discussion would amount to nothing more than dicta. As Chief Justice Roberts has aptly stated, "the cardinal principle of judicial restraint” is that "if it is not necessary to decide more, it is necessary not to decide more[.]” PDK Labs., Inc. v. Drug Enforcement Administration, 362 F.3d 786, 799 (C.A.D.C.2004) (Roberts, J., concurring in part and concurring in judgment). In recognition of this "cardinal principle,” we decline to address the issue.

1 .A “suppression” is also "deliberate” when there is “a failure to disclose evidence whose high value to the defense could not have escaped the prosecutor’s attention.” Lerner v. Moran, 542 A.2d 1089, 1092 (R.I.1988) (quoting United States v. Keogh, 391 F.2d 138, 147 (2nd Cir. 1968)). However, because the hearing justice did not consider this second definition provided in Lemer when discussing the statements of Donna Carrier — by completely failing to articulate it in his written decision and by failing to malee findings relative thereto — it is my opinion that neither should this Court.